Graham v. Morgan

83 Miss. 601 | Miss. | 1903

Truly, J.,

delivered the opinion of the court.

The sole question presented by this record is whether appellee participated in or was cognizant of the fraudulent intent of her husband towards his other creditors in mating the deed of the .property to her. It is probably true that but for the suit then •pending of Nicholson v. T. B. Morgan (husband of appellee), and the probability of judgment being obtained by Nicholson, the property would not have been conveyed at the time it was. .But assuming this to be true, it is not of,itself sufficient to show that appellee was a party to any fraud. Tinder uniform decisions of our court, a husband, though insolvent, has a right to prefer his wife and protect her interest by conveying his property to her, even though by so doing his other creditors are defeated of their rights, and even though the conveyance is made on account of the pendency of suits by other creditors against him; the only condition being that there must be existing between husband and wife a valid indebtedness equal to the fair value of tbe property conveyed. In Savage v. Dowd, 54 Miss., 732, it is said: “If Madry (tbe busband) was tbe debtor of bis wife to tbe full value of tbe land, it was lawful for bim to convey it to ber in payment of tbis debt, even tbougb bis object was to prefer ber to Mrs. Dowd (bis creditor), who was endeavoring to get a judgment against bim.” Upon tbis record it appears evident that there was a legal pre-existing indebtedness to appel-lee from ber busband: there is no dispute upon tbis point. At tbe time that T. B. Morgan, tbe busband, purchased tbe property be informed bis vendor that tbe purchase was made with tbe money of bis wife’s, although tbe deed was taken in Ms own name. It further appears, and is likewise undisputed, that be obtained other moneys from bis wife, tbe appellee, and used at least a large portion of it to pay off incumbrances on tbe property now involved. Appellee denied all knowledge of any fraudulent intent on tbe part of ber busband; all knowledge of any indebtedness due by bim to others; and, so far from concealing, stated on several occasions all of the facts surrounding tbe conveyance of tbe property to ber by ber busband, and gives a reasonable explanation of ber action in demanding tbe conveyance of tbe property to ber. As a question of fact, tbe chancellor decided that tbe indebtedness due appellee by ber bus-band equalled tbe full value of tbe land conveyed, and that ap-pellee was not proven to have been guilty of any fraud, and we see no reason for disturbing bis finding. Under tbe established doctrine in our state, we think tbe chancellor was right in sustaining tbe conveyance to appellee, and in ordering tbe sheriff’s deed, under execution sale, to appellant, to be cancelled as a cloud upon appellee’s title. McAllister v. Honea, 71 Miss., 256, 14 So., 264; Tuteur v. Chase, 66 Miss., 476, 6 So., 241, 4 L. R. A., 832, 13 Am. St. Rep., 577; Savage v. Dowd, supra; Kaufman v. Whitney, 50 Miss., 103; Ladnier v. Ladnier, 64 Miss., 368, 1 So., 492.

Affirmed.